Wichita Police investigate the area around Hotel at Old Town and the adjoining parking garage after five people were shot early this morning in the 200 block of North Mosley after a concert wrapped up at a club. Police exchanged gunfire after chasing a man into a parking garage. One person died, Lt. Randy Reynolds told The Eagle this morning. It was not immediately clear if the man police shot was the person who died. (March 10, 2012) The Wichita Eagle

Wichita Police investigate the area around Hotel at Old Town and the adjoining parking garage after five people were shot early this morning in the 200 block of North Mosley after a concert wrapped up at a club. Police exchanged gunfire after chasing a man into a parking garage. One person died, Lt. Randy Reynolds told The Eagle this morning. It was not immediately clear if the man police shot was the person who died. (March 10, 2012) The Wichita Eagle

Police shooting of Marquez Smart in Old Town justified, DA rules

Two Wichita police officers did not break any laws when they shot Marquez Smart to death in Old Town last March, says a report released Thursday by the Sedgwick County District Attorney’s Office.

But the report doesn’t say who shot three of four bystanders who were injured as gunfire was exchanged.

Pedro Irigonegaray, a Topeka lawyer who represented a man who received a $4.75million settlement from the city after he was shot by a Wichita police officer in 2004, said the public has the right to know how the three other bystanders were injured in Old Town.

“Transparency is the best protector of democracy. Transparency is not what you have provided to you at this time,” he said after reviewing the report. “I would certainly suggest to you that further investigation is not only appropriate but needed for both the possibility of additional criminal charges and for public safety and knowledge.”

Wichita Police Chief Norman Williams expects to shed more light on the case after the department has concluded its own review, said Lt. Doug Nolte.

Police shot Smart, 23, as he reportedly fled the downtown entertainment district after 2 a.m. March 10. Officers said they saw a man later identified as Smart “wearing a bright yellow shirt holding a gun extended in front of him. One officer saw the male fire the gun, then observed the male stop shooting and begin running.”

The report said that the officers “gave chase and reported the suspect did not respond to verbal commands to drop the gun. Both officers fired shots at the suspect as he ran into the walkway on the north side of the garage and headed west. The suspect fell to the ground after being shot and was taken into custody.”

Smart, who worked at a retirement community, later died at Via Christi Hospital on St. Francis.

Four bystanders “were struck with bullets or bullet fragments,” the report says. The report says Smart “fired two shots from a large-caliber handgun at an unknown target. One of his shots struck a female in the crowd.”

The report does not say who shot the other three people. Asked if police shot them, Georgia Cole, a spokeswoman for the district attorney’s office, said, “If it’s not in the release, we’re not saying it.”

She said the district attorney’s investigation was about whether the use of lethal force by police in Smart’s death was justified.

“That is the focus of our investigation,” she said. “That’s what we have to make a determination on.”

The police department began its own review of the case Thursday.

Although the DA’s investigation cleared the two officers of any crime, it “is very important to the Wichita Police Department that our officers follow not only the law, but our own policies,” Williams said in a news release.

Smart’s family has said that they do not believe he started firing shots that night.

Brenda Bryant, Smart’s mother, told The Eagle in September that her son didn’t own a gun as far as she and his father knew. The DA’s report says the “Smith and Wesson firearm used by Smart had been reported stolen from a local business in 2009.”

Smart’s mother and father did not return phone calls Thursday seeking comment about the DA’s ruling.

An autopsy showed Smart was shot five times – in the right hip, the right elbow, twice in the lower left back and one in the lower right back. The wounds reflect that Smart was shot from behind, the report states.

The report says that Smart fired twice into the crowd, hitting a woman, and then began running through the crowd with the gun.

The two officers fired at Smart “to stop his escape from the commission of a forcible felony and to stop the continuing threat to human life,” the report said.

One of the officers had been with the police department for 14 months at the time. The other was a six-year veteran of the department at the time.

The first officer said he was helping break up a large crowd on Mosley Street and observed people on the east side of the street yelling at each other, the report said. He looked in that direction, heard a gunshot and “immediately saw a black male wearing a yellow shirt with a gun.”

“People began running and screaming,” the report said. “Officer 1 said he extended his gun toward the suspect and fired what he believed was one shot at the suspect,” the report said, adding that the officer chased Smart “and was still in fear that the suspect may fire additional shots.”

“He said that as he was chasing the suspect, the male began manipulating the gun by bending his arm and moving the gun up toward his own body,” the report said. “The officer said he wasn’t sure what the male was doing with the gun but was still fearful for the lives of the bystanders.”

The officer fired two or three more shots, the report said.

“Officer 1 said he immediately heard additional shots fired to his right and saw the suspect fall to the ground in the walkway,” the report said.

The second officer said as he was monitoring the crowd, “he saw a group of people began to scatter in the street area, followed by what he believed were four to five gunshots,” according to the report. The second officer said he saw a “black male wearing a yellow shirt and the male was holding a handgun with his arm extended as if he’d either fired or was going to fire the gun,” the report said.

The man, later identified as Smart, began running through the crowd, the report said. The second officer said he heard two to three additional shots “but was unsure if the shots came from Officer 1 or from the suspect,” the report said.

The second officer said he heard the other officer yell “Drop the gun!” at least twice, the report said.

The second officer saw the suspect run past the garage and begin to turn west into the walkway north of the garage, the report said. “Officer 2 said there were bystanders still in the area and he believed the suspect was a threat to everyone in the area. Officer 2 said he got within seven to 10 feet from the suspect when the suspect turned to run west down the walkway. Officer 2 said he gave the suspect a command to drop his gun, but the male didn’t comply. Officer 2 said he then fired three or four shots at the suspect and the suspect fell to the ground.”

The bystanders injured were a 30-year-old man, a 20-year-old woman, a 17-year-old woman and an 18-year-old woman. The report said the 20-year-old woman was not “fully cooperative” but told a police lieutenant that “the guy who shot me is dead.”

The 30-year-old man told investigators, the report said, that he was walking on Mosley after leaving Old Chicago when he heard one gunshot and started running. He said he heard a second shot as he was running into a parking lot and felt pain in his right leg. The report said the man suffered a gunshot wound to the calf. The bullet was not recovered by police.

The 20-year-old woman told police, the report said, that she had been at a concert at Doc Howard’s that night. The report said the woman told investigators “that someone pulled a gun and was going to shoot her cousin, so she pushed the cousin out of the way and was shot.” She was shot on the front of her right shoulder, the report said.

The 17-year-old woman said she also had been at a concert and was in the crowd on Mosley when she heard two gunshots, according to the report. She ran into the parking garage and was going up the ramp to the second floor when she heard more gunshots and saw someone fall to the ground in the walkway north of the garage, the report said. She was shot on her left calf and doctors left the bullet in place, the report said.

The 18-year-old woman went to Wesley Medical Center later that morning, the report said. She also had been at the concert and told investigators she was in the parking garage when she heard gunshots, the report said.

“She said she started to run, felt like she got pushed and fell to the ground,” the report said. “She said she got up after the shots stopped and walked to the west where she met her friends at their car. (She) said she lost her shoes when she fell and, upon getting up, she felt a stinging sensation around her right side.” She and friends stopped at a convenience store, the report said, and she later noticed blood on her side. Doctors removed a bullet fragment, the report said.

An autopsy showed Smart had been drinking and tested positive for the active ingredient in marijuana.

Mike Shatz with Occupy Wichita, which has organized protests and criticized police, said he remains unconvinced the gun was Smart’s. Since October 2011, five people have been killed and nine wounded in confrontations involving police.

“There is not one shred of physical evidence tying Mr. Smart to the gun,” he said, noting there was no mention of gunshot residue on Smart’s body or clothes in the autopsy reports and “no mention anywhere of fingerprints on the gun, the magazines or individual shells in the magazine.”

Shatz said he believes the three other bystanders were shot, accidentally, by police.

Contributing: Stan Finger of The Eagle

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